01A12083_r
11-16-2001
Mark R. Fox, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Mark R. Fox v. Department of Transportation
01A12083
November 16, 2001
.
Mark R. Fox,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A12083
Agency No. 4-01-4018
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 12, 2000, dismissing his complaint of unlawful
employment discrimination in violation of the Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq. Complainant alleged that he was
discriminated against on the basis of sex when:
he received a less beneficial pay increase under the new pay-setting
and reclassification rules; and
he was denied opportunities to bid jobs and transfer due to his status
as a �developmental� controller.
The agency decision dismissed the complaint for failure to state
a claim, and, alternatively, for untimely EEO Counselor contact.
Specifically, with regard to complainant's failure to state a claim,
the agency found that the claim raised a general grievance, not an
individual harm suffered by complainant. In its decision the agency
explained that under negotiated pay-setting rules all air traffic
control specialists (including PATCO rehires) hired before October 1,
1998 (and who were developmentals as of October 1, 1998) were converted
to the new pay system in one manner, while those hired after October 1,
1998 were subject to different pay-setting rules. The agency apparently
reasoned that, as complainant shared his claim that he received a less
beneficial pay increase and was denied movement opportunities with all
those former PATCO members rehired prior to October 1, 1998, his claim
did not constitute an individualized harm. With regard to timeliness, the
agency found that complainant's October 18, 2000 EEO Counselor contact was
more than forty-five days beyond the April 19, 1999 date he was provided
the new pay-setting and reclassification rules, and was thus untimely.
Upon review, we find that complainant, in essence, has alleged one claim
challenging the effects of the new pay-setting and reclassification rules
on former PATCO members hired before October 1, 1998. As such, we find
that the agency improperly dismissed complainant's claim pursuant to 29
C.F.R. � 1614.107(a)(1). In the present case, complainant asserts that
he is personally harmed because he is not receiving the full pay increase
given other rehired PATCO controllers or allowed to move to a position
with the full pay increase. As complainant identified a specific injury
with respect to the terms and conditions of his employment, we find that
he has stated a claim. See Crandall v. Department of Veterans Affairs,
EEOC Request No. 05970508 (September 11, 1997); Coleman v. Department
of Transportation, EEOC Request No. 05A10034 (February 28, 2001).
We also find that the agency improperly dismissed complainant's claim
pursuant to 29 C.F.R. � 1614.107(a)(2). In the present case, complainant
claims that the agency has violated the Equal Pay Act because female
controllers hired after him receive more pay. The Commission has
held: "In cases such as this [alleging an Equal Pay Act violation on a
continuing basis], the reasonable suspicion standard is inapplicable.
Otherwise, the agency would be able to continue its discrimination
in perpetuity with no remedy available to the complainant." Moller
v. Department of Health and Human Services, EEOC Request No. 05960505
(July 24, 1997) (citing Robinson v. General Services Administration,
EEOC Request No. 05950558 (July 1, 1996)). Because there is no evidence
to show that the agency eliminated the alleged discriminatory practice
when complainant raised his claim with an EEO Counselor, the Commission
finds that the Equal Pay Act claim was timely raised with an EEO Counselor
under a continuing violation theory. See id.
Accordingly, the agency's dismissal of complainant's complaint is REVERSED
and the complaint is REMANDED for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 16, 2001
__________________
Date